CHIRP has received increasing numbers of reports in recent months about the use of commander’s discretion and the perception that it is being programmed in to some rosters in order to resolve crewing problems. The majority of these reports are not publishable in isolation because the associated details make the reporters identifiable. However, CHIRP has represented these reports to the CAA in aggregate and has asked that they consider both reviewing the specific companies’ policies on discretion and the reality of actual current rosters. As a result, the CAA have focused some of their oversight activities for particular airlines in this area and have commented that there needs to be a better understanding of discretion within the industry overall. In recognising this, the CAA hope to publish an information note in the coming months to give more detailed guidance and advice to individuals on what discretion is and the rules for its use.

The use of commander’s discretion is not a safety issue in itself provided it is managed properly. Importantly, it should not be used on a planned basis but is intended to be employed for those unplanned and unforeseen circumstances and delays that occur during a duty and which would take the crew beyond the normal FDP limit.  Crews should not be arriving at the report point to find the operator relying on the Commander’s use of discretion to conduct the duty – if unforeseen circumstances arise prior to ‘report’ then the reporting time should have been delayed instead when feasible. ORO.FTL.205 Flight Duty Period (FDP) (f) states the rules for the use of commander’s discretion in relation to FDP (extract shown) but, in stating that its use is for unforeseen circumstances which start at or after the reporting time, the problem is that there’s no real definition of what an unforeseen circumstance might be and so this is potentially a grey area.

ORO.FTL.205 Flight Duty Period (FDP)

(f)  Unforeseen circumstances in flight operations — commander’s discretion

(1)  The conditions to modify the limits on flight duty, duty and rest periods by the commander in the case of unforeseen circumstances in flight operations, which start at or after the reporting time, shall comply with the following:

(i)  the maximum daily FDP which results after applying points (b) and (e) of point ORO.FTL.205 or point ORO.FTL.220 may not be increased by more than 2 hours unless the flight crew has been augmented, in which case the maximum flight duty period may be increased by not more than 3 hours;

(ii)  if on the final sector within an FDP the allowed increase is exceeded because of unforeseen circumstances after take-off, the flight may continue to the planned destination or alternate aerodrome; and

(iii)  the rest period following the FDP may be reduced but can never be less than 10 hours.

(2)  In case of unforeseen circumstances which could lead to severe fatigue, the commander shall reduce the actual flight duty period and/or increase the rest period in order to eliminate any detrimental effect on flight safety.

(3)  The commander shall consult all crew members on their alertness levels before deciding the modifications under subparagraphs 1 and 2.

(4)  The commander shall submit a report to the operator when an FDP is increased or a rest period is reduced at his or her discretion.

(5)   Where the increase of an FDP or reduction of a rest period exceeds 1 hour, a copy of the report, to which the operator shall add its comments, shall be sent by the operator to the CAA not later than 28 days after the event.

(6)  The operator shall implement a non-punitive process for the use of the discretion described under this provision and shall describe it in the operations manual.

AMC1 ORO.FTL.205(f) Flight Duty Period (FDP) gives some further guidance by recognising the shared responsibility of management, flight and cabin crew in managing ‘unforeseen circumstances’, and noting that the use of commander’s discretion should be exceptional and should be avoided at home base and/or company hubs:

UNFORESEEN CIRCUMSTANCES IN ACTUAL FLIGHT OPERATIONS — COMMANDER’S DISCRETION

(a)   As general guidance when developing a commander’s discretion policy, the operator should take into consideration the shared responsibility of management, flight and cabin crew in the case of unforeseen circumstances. The exercise of commander’s discretion should be considered exceptional and should be avoided at home base and/or company hubs where standby or reserve crew members should be available. Operators should asses on a regular basis the series of pairings where commander’s discretion has been exercised in order to be aware of possible inconsistencies in their rostering.

Overall then, the management of unforeseen circumstances during flight operations is a shared responsibility between operations management, flight and cabin crew, with the Commander – exercising his/her overall responsibility for the safety of the flight – as the final arbiter of any decisions. Therefore, in the case of unforeseen circumstances, and at his/her sole discretion, the Commander may extend the Flight Duty Period providing he/she considers that the safety of the flight will not be adversely affected by that extension. The Commander may also use his/her discretion to reduce a rest period (the rest period following an FDP may be reduced, but never below 10 hours).   In exercising discretion, the Commander must ensure that, at all times prior to take-off, there is a realistic plan to remain within the Maximum Allowable FDP (including commander’s discretion). It is recognised that after take-off there may be unforeseen circumstances that could cause a minor exceedance of the Maximum Allowable FDP and, in such circumstances, the Commander must ensure that continued safe operation is prioritised over the need to stay within the Maximum Allowable FDP. Finally, although the crew must be consulted as to their alertness levels before commander’s discretion is employed, discretion is the commander’s to use or not and it is for them alone to decide on whether or not to invoke it rather than being a collective agreement by the entire crew.

CHIRP passed on our concerns about the use of extended FDP in this way to the CAA and they engaged with the company. However, due to commercial considerations, the CAA do not pass on to CHIRP explicit details of follow-on associated discussions or data about specific concerns such as this other than to confirm that oversight activity has been conducted.

More generally, extended FDP allows the maximum basic Flight Duty Period for acclimatised crew members to be increased without the use of in-flight rest – this equates to an additional hour being applied to the basic FDP. Basic FDP may be extended not more than twice in any 7 consecutive days and must include either a pre- and post-flight rest extension of 2 hours, or a post-flight rest increase of 4 hours.  Extended FDP must be planned in advance.  If commander’s discretion is then applied to an extended FDP, then the maximum FDP from the basic FDP table is used to calculate the limits of discretion as shown in ORO.FTL.205 Flight Duty Period (FDP) (d) & (e)shown below.

ORO.FTL.205 Flight Duty Period (FDP)

(d)  Maximum daily FDP for acclimatised crew members with the use of extensions without in-flight rest.

(1)  The maximum daily FDP may be extended by up to 1 hour not more than twice in any 7 consecutive days. In that case:

(i)  the minimum pre-flight and post-flight rest periods shall be increased by 2 hours; or

(ii)  the post-flight rest period shall be increased by 4 hours.

(2)  When extensions are used for consecutive FDPs, the additional pre- and post-flight rest between the two extended FDPs required under subparagraph 1 shall be provided consecutively.

(3)  The use of the extension shall be planned in advance, and shall be limited to a maximum of:

(i)  5 sectors when the WOCL is not encroached; or

(ii)  4 sectors, when the WOCL is encroached by 2 hours or less; or

(iii)  2 sectors, when the WOCL is encroached by more than 2 hours.

(4)  Extension of the maximum basic daily FDP without in-flight rest shall not be combined with extensions due to in-flight rest or split duty in the same duty period.

(5)  Flight time specification schemes shall specify the limits for extensions of the maximum basic daily FDP in accordance with the certification specifications applicable to the type of operation, taking into account:

(i)  the number of sectors flown; and

(ii)  WOCL encroachment.

(e)  Maximum daily FDP with the use of extensions due to in-flight rest Flight time specification schemes shall specify the conditions for extensions of the maximum basic daily FDP with in-flight rest in accordance with the certification specifications applicable to the type of operation, taking into account:

(i)  the number of sectors flown;

(ii)  the minimum in-flight rest allocated to each crew member;

(iii)  the type of in-flight rest facilities; and

(iv)  the augmentation of the basic flight crew.

But there are penalties to a company for using extended FDP rather than commander’s discretion due to the additional rest periods required. The reporter’s comments that this particular company were using extended FDPs to avoid having to report discretion (which is a mandatory reporting requirement to the CAA for periods exceeding 1 hour) was therefore of interest. Asked what the CAA does with discretion reports, the CAA commented that if the actual operation of a route exceeds the maximum FTL for 33% of the times that a route is flown in a scheduled season then they require the operator to make changes to the route structure (ORO.FTL.110 (j) refers).

An airline recently changed its sickness policy for both flight and cabin crew such that if they reported sick even for one day their salary was reduced by salary/260 for each day of sickness (there being 260 days reckoned available for work in any 12-month period). This was compounded by the fact that the salary represented approximately 50% of their pay for the lost day with the other element (variable pay) also being lost completely. As a result, crews were being induced to fly when they were unfit to do so due to financial pressures despite legally being required not to operate. For periods of sickness up to 3 days, no pay was received; Statutory Sick Pay (£19.87 per day) was then being paid from the 4^th day onwards.

CHIRP received a number of reports about this issue which we could not publish due to problems disidentifying the reporters. As a result, we engaged with the CAA to ask them to review the company’s absence policies and their suitability in respect of sickness payments. We’re pleased to report that, following this engagement with the company, the Airline have since changed these financial arrangements within their absence management policy. The safety implications of the previous financial measures were obvious and we are grateful to the CAA for taking up the case on our behalf, and for the company in subsequently understanding the dilemma to which it was placing its workforce. This absolutely highlights the value of reporting; without having done so it is unlikely that anything would have changed until circumstances conspired to bring about a serious incident involving someone who was unfit to operate.

In a similar manner to the reporting of absence management and use of discretion, reports that CHIRP receives about rostering and duty periods necessarily contain route and personal information that mean we are unable to approach companies directly about specifics due to the fact that reporters would be easily identifiable.  Our only recourse is to engage with companies where possible with aggregated information from a number of reports, and to ask the CAA for their perspective on a company’s operations. Post-COVID resourcing pressures have resulted in a number of changes to rostering practices wherein it is clear to CHIRP that some companies are approaching FTL maximums much more frequently than hitherto. CHIRP’s view on FTL maxima has consistently been that they should be approached only infrequently and in a managed manner – as with any system, running resources at the red line for prolonged periods is a sure way of increasing risks that should not be contemplated without considerable caution; the response of ‘it’s legal’ is not a mature way of managing fatigue and FTLs.

Although we cannot claim any specific successes ourselves in resolving these issues, CHIRP regularly engages with the CAA and they have conducted specific oversight activities based at least partially on our inputs in association with their own intelligence about what is going on. There have been changes made to some rostering practices as a result, but we continue to engage about other aspects of rostering that appear to be ‘legal’ in pure FTL terms but not sensible from a Human Factors perspective as far as we are concerned. Part of CHIRP’s concerns lie within the sometimes black-and-white outcomes and temptations to rely on the certitudes of ‘sleep science’. There has to be some structured and systematic basis for constructing rosters but, whereas concepts such as WOCL and circadian rhythms provide a good basis for understanding the background factors affecting sleep, we’re not yet convinced that ‘sleep science’ is robustly able to deal with the multiple idiosyncrasies of individual people, circumstances or route structures to predict specific outcomes.

Example comments received by CHIRP are:

“Pre-covid as a pilot I rarely felt the need to nap whilst at the controls. Now I feel it’s a necessity to do it on every night sector to minimise micro-napping and falling asleep at the controls at critical stages of flight.”

“No matter what studies these so proclaimed sleep specialists and scientists claim to have done and what monitoring devices they use in their studies, they have not done the job first hand. And if they have, it has not been for a prolonged period of months, or years. Yet airlines seem to think it’s ok to roster to the limits. There is a complete lack of understanding. They are called Flight Time Limitations. They are not called Flight Time Targets.”

“Fatiguing flight outbound. More time spent in the aircraft than resting down route. When I arrived at the hotel I needed to rest for a few hours as already exhausted. This then impacts quality of sleep before 5am body clock wakeup for return sector.”

“High levels of fatigue experienced in cruise needing attempts at multiple periods of controlled recovery rest. Too fatigued on landing to travel away from the airport without a proper full rest so booked hotel, at my own expense, as a self-imposed fatigue mitigation.”

“Fatigue is clearly an issue at [Airline], but the company discourage fatigue forms, penalise absence and crewing are clearly manipulating rest periods/duty times to make things legal. There is definitely a safety issue here. Last night I had to get the First Officer to fly both sectors because I was so drunk on tiredness.”

It’s vital that crews continue to submit fatigue reports when appropriate, even if they suspect they are not being sufficiently acted upon, so that actual data can be used to modify theoretical scientific assumptions. Thankfully, many companies are receptive to such reports as they evolve their rosters, and the development of associated fatigue risk management regimes hinges on an understanding gained from these about the stresses and rest opportunities pertaining to each duty and individual. Regulations for rostering/scheduling are many and complex, not least in respect of FTL requirements. Overarching requirements for operators to “…allocate duty patterns which avoid practices that cause a serious disruption of an established sleep/work pattern, such as alternating day/night duties” are stated within ORO.FTL.110(e) Operator responsibilities, whilst the associated AMC1 ORO.FTL.110 Operator responsibilities defines the underpinning scheduling requirements that state:

SCHEDULING

(a) Scheduling has an important impact on a crew member’s ability to sleep and to maintain a proper level of alertness. When developing a workable roster, the operator should strike a fair balance between the commercial needs and the capacity of individual crew members to work effectively. Rosters should be developed in such a way that they distribute the amount of work evenly among those that are involved.

(b) Schedules should allow for flights to be completed within the maximum permitted flight duty period and flight rosters should take into account the time needed for pre-flight duties, taxiing, the flight- and turnaround times. Other factors to be considered when planning duty periods should include:

(1) the allocation of work patterns which avoid undesirable practices such as alternating day/night duties, alternating eastward-westward or westward-eastward time zone transitions, positioning of crew members so that a serious disruption of established sleep/work patterns occurs;

(2) scheduling sufficient rest periods especially after long flights crossing many time zones; and

(3) preparation of duty rosters sufficiently in advance with planning of recurrent extended recovery rest periods and notification of the crew members well in advance to plan adequate pre-duty rest.

Alternating day/night duties, alternating eastward-westward or westward-eastward time zone transitions and the scheduling of sufficient rest periods especially after long flights crossing many time zones get specific mentions in ORO.FTL.110, but there are many more other factors that affect the quality of in-flight rest and the ability to sleep both down route and when home. Humans are not machines that can be turned off at the flick of a switch, the ability to fall asleep is something that varies from individual to individual, and even for a specific individual depending on the context of their duties, pressures and stresses, personal circumstances and activity profile in the hours immediately prior to attempting to fall asleep. In our discussions with the CAA, they have indicated that they also recognise the limitations of some of the current fatigue management regulations. Now that UK is no longer tied to EU requirements, and subject to resources being allocated, they have a medium-term aspiration to look again at the fatigue regulations inherited from EASA and to tailor the UK FTL//FRMS document set to reflect better our specific perspectives and circumstances.